January 2012

January 30, 2012

Updated 2/3 at 1:53 p.m.: Warren Communications moved to voluntarily dismiss the case Feb. 3, notifying the court that the parties had "resolved their dispute."

Warren Communications News Inc., a Washington-based news organization that covers the telecommunications and media industries, is suing a subscriber for making unauthorized copies of a daily newsletter to the tune of as much as $19.5 million.

According to the
complaint (PDF), filed Friday in U.S. District Court for the District of Columbia, Warren Communications is accusing a Michigan company of buying a single subscription to a daily newsletter and then making multiple copies to distribute to present and former employees.

The newsletter, Communications Daily, is sent as a PDF document to subscribers via e-mail. Warren Communications is accusing an employee of U.S. Signal LLC of subscribing to the newsletter in March 2009 and, starting in Oct. 2010, sending copies around and outside of the office. U.S. Signal operates fiber optic networks in the Midwest.

The $19.5 million price tag is based on the maximum amount a jury can award in damages for this type of copyright infringement. Warren Communications alleges U.S. Signal made copies of at least 130 editions of the newsletter, multiplied by $150,000 for each act of willful infringement.

A U.S. Signal representative could not immediately be reached for comment. Warren Communications News is being represented by Wiley Rein partner Thomas Kirby, who also could not immediately be reached.

Robbing a bank is a crime, of course, and there's a solid chance you will go to prison if you are convicted. Add a machine gun into the scheme and the potential punishment jumps to a 30-year mandatory-minimum stint behind bars.

With that amount of time on the line, should prosecutors be required to convince jurors that a robber knew the gun was capable of automatic firing?

The full U.S. Court of Appeals for the D.C. Circuit today took up the issue. One judge, Brett Kavanaugh, called the mandatory-minimum term for a machine gun “fairly extraordinary.”

Earlier, a three-judge panel ruled against Burwell’s challenge of the firearm component of his conviction. At issue is whether the gun provision in question should be treated as a sentence enhancement or whether the crime is a separate offense that requires proof of a defendant's knowledge.

Burwell, who participated in a series of armed robberies in the District of Columbia in 2004, was convicted in U.S. District Court for the District of Columbia and sentenced to more than 40 years in prison. The bulk of his imprisonment stems from the automatic firearm he used in a hold-up.

Prosecutors said Burwell armed himself with a fully automatic, foreign-made AK-47 (pictured at left) during one of the robberies. With the flip of a switch, prosecutors said, a user could turn the weapon into an automatic.

A lawyer for Burwell, Washington solo practitioner Robert Becker, argued today that Congress wanted prosecutors to prove a defendant’s knowledge about firearms. Burwell, Becker also said, did not know the gun was capable of machine gun fire. Another member of the robbery team, Becker said, first acquired the firearm.

Becker tried to convince the court that it should apply the strong presumption against "strict liability" crimes--offenses that do not require prosecutors to prove a defendant's knowledge. He urged the panel to vacate Burwell’s conviction. Burwell, he said, would likely still face a 10-year mandatory minimum sentence.

The widow of a Taiwanese billionaire has lost her attempt in a Washington federal court to reclaim billions of dollars in assets she claims were diverted to one of several trusts controlled by rival family members.

In a
ruling (PDF) published Friday, U.S. District Judge James Boasberg found that because the widow had failed to prove the citizenship of the trust's beneficiaries - as opposed to just the trustee - the court didn't have jurisdiction to hear the case. Boasberg did order the defendants to turn over information on the beneficiaries within two weeks, however, leaving the door open for Wang to try again.

Yueh-Lan Wang was legally married to Yung-Ching Wang, known as Y.C. Wang, for 72 years. Y.C. Wang, who died in 2008, founded the Formosa Plastics Group in the 1954 and was named the 178th wealthiest person in the world the year before he died by Forbes magazine.

But, as Boasberg wrote in Friday’s opinion, “if Y.C. was a businessman first, he was a family man second.” Wang had no children with Yueh-Lan Wang, but had nine children with two other women who were not his wife.

Y.C. Wang didn't leave a will. According to the
complaint (PDF) first filed in October 2010, Yueh-Lan Wang accused one of these women and her children, known as the “Third Family,” of manipulating Y.C. Wang as he grew older and sicker to gain control of his assets, and then diverting money to separate trusts in the U.S. and overseas to reduce Yueh-Lan Wang’s share of the marital estate.

Yueh-Lan Wang had a good relationship with her husband’s children from his “Second Family,” according to the complaint, including Winston Wen-Young Wong, Y.C. Wang’s oldest son. The complaint also accused the Third Family of using the trusts to keep power out of the hands of the Second Family.

Kaye Scholer has added a white collar litigation attorney to its Washington office, the firm announced Monday.

Amy Conway-Hatcher, a former Morgan, Lewis & Bockius partner, has joined as a partner with Kaye Scholer's white collar litigation and internal investigations practice group. She represents clients in the life sciences, financial services, technology and energy industries sectors before federal and state regulators. She has handled matters involving the Foreign Corrupt Practices Act, international regulations, securities fraud, healthcare fraud, tax fraud and environmental violations.

Before joining Morgan Lewis, Conway-Hatcher worked for six years as an assistant U.S. attorney in the District of Columbia.

“A rising star in the FCPA and government investigations arenas, she’s a welcome addition to our D.C. office and the firm’s White Collar team,” managing partner Mike Solow said in a written statement.

The Supreme Court is guilty of a broad “failure to communicate” to the public it serves, constitutional scholar and law dean Erwin Chemerinsky said on Friday.

And this failure extends beyond the Court’s stubborn resistance to allowing camera coverage of its oral arguments. At almost every point of its decision-making process, according to Chemerinsky, the high court should be doing more to inform the public about what it does.

Chemerinsky, founding dean of the University of California, Irvine School of Law, was the keynote speaker at a symposium on the Court, the press and the public at Brigham Young University’s J. Reuben Clark Law School. Scholars and journalists spoke on different aspects of the interaction – or lack thereof -- between the Supreme Court and the public.

The conference coincided with renewed calls for the Court to allow cameras in, this time for the upcoming oral argument on the constitutionality of the Affordable Care Act. Several requests for broadcast access are pending before the justices.

“People should be able to watch their government in action, and [the Supreme Court] is a crucial institution of government,” said Chemerinsky, who added that he thinks a First Amendment argument in favor of broadcast access could be made.

Chemerinsky said many members of the public think that the fate of the health care reform law will turn on issues of individual liberty, rather than on the Constitution’s commerce clause. Airing the oral arguments in late March would clear up that misunderstanding, Chemerinsky said, and would be a “tremendous civic education.”

The public would see nine “exceptionally intelligent” justices working hard to get the right answer, he said, asserting that televised oral argument would enhance, not diminish, the Court’s stature with the public. It might even encourage “better behavior,” Chemerinsky said. “Justice Thomas might ask some questions.”

Chemerinsky did not focus only on the long-running debate over cameras at oral argument, highlighting other deficiencies in its procedures. The Court has pointed with pride to advances in this area, including its web site, where decisions and oral argument transcripts are posted quickly. But Chemerinsky said much more is needed for the Court to explain itself better to litigants and to the public, in the interest of enhancing the Court’s legitimacy and public understanding.

For example, he said the Court owes litigants as well as the public some explanation why it has denied review in pending petitions. The “vast majority” of petitioners, even some that pose a circuit conflict, are denied review without learning why. That, he said, is an “extremely important failure to communicate.”

The Court could also be doing more to inform the public when it releases opinions, Chemerinsky said. It should be telling in advance which decisions it will be releasing – as courts in California and Canada do – to assist the press and commentators in getting ready to write about its decisions. The justices should also spread out the release of opinions “to allow the press to accurately report” on them, he added.

And to increase understanding of sometimes “dense and hard to follow” decisions and syllabi, Chemerinsky said the Court should hire a “clear writer” who would boil each decision down to a single paragraph that would be released along with the ruling.

Justices should also strive to make their opinions more concise, he said. There is a “perfect inverse correlation,” Chemerinsky said, between the decrease in the number of cases the Court decides with opinions, and the increase in the length of those opinions.

Other presenters at the conference sought to drew correlations between the justices’ personal experiences and their views on the media.

Conference host and Brigham Young professor RonNell Andersen Jones, formerly a clerk to Justice Sandra Day O’Connor, explored the seeming inconsistency between the Court’s “overwhelmingly press-protective” decisions and its “access-stingy” policies relating to its own work. One explanation, she said, is that the Court can exercise “a colossal amount of control over their operations.”

Boston College Law School professor Mary-Rose Papandrea spoke about the justices’ “quite cautious” approach to new technology in their decisions and in their personal lives. She said “my beloved boss” Justice David Souter, for whom she clerked, recently said – perhaps jokingly – that he had tried to use an iPad, but hid it in a closet because he could not figure out how to turn it off.

Romney Leading: Mitt Romney is atop a new NBC News-Marist Institute poll of likely Republican primary voters in Florida, MSNBC.comreports. Romney received 42% in the poll released Sunday. Gingrich, who came in second, got 27%. The primary is Tuesday.

Occupy Tension: D.C. police arrested and tased a protester Sunday at the McPherson Square Occupy D.C. camp after increasing tension between demonstrators and law enforcement in the lead up to Monday's noon deadline to enforce a prohibition on overnight camping, The Washington Postreports. Police were distributing flyers about the impending deadline at the time.

Associate Squeeze: The return of profits to law firms following the recession isn't bringing much relief for young associates, The Wall Street Journalreports. Many elite law firms have cut the number of young lawyers they have by as much as half from 2008.

Improved Coordination: The U.S. Justice Department told lawmakers on Friday that agents and their managers now are coordinating better in gun trafficking investigations, The Associated Press reports. The announcement comes in the aftermath of miscommunication stemming from the controversial Operation Fast and Furious arms trafficking probe. The Department had relied on incorrect information about the investigation from Bureau of Alcohol, Tobacco, Firearms and Explosives officials in Washington and the U.S. attorney in Arizona, instead of consulting agents with direct knowledge of the probe.

Competing Interests: Edwards Wildman Palmer is fighting back against two former partners who claim the firm's soon-to-be-former managing partner Walter Reed put a love interest before the interests of the firm's merger negotiations in 2011, The Am Law Dailyreports. Edwards Wildman said in a motion to dismiss and compel arbitration filed Thursday that ex-partners Lawrence Cohen and Jay Rosenbaum broke their partnership agreement with the firm in an effort to obtain more money. Rosenbaum and Cohen, who shared clients, claim that Reed had an affair with Cohen's wife, Edwards Wildman private client practice co-chair Laurie Hall, leading to a cut in the compensation they received and exclusion from key firm leadership activities.

January 27, 2012

Hundreds of Hispanic farmers who had been represented by Howrey in a suit against the federal government alleging discriminatory lending practices, have asked a federal judge to ensure that they aren’t left without representation.

Howrey’s bankruptcy trustee filed a motion last month to allow the estate withdraw from the case, but the farmers don’t want Howrey to go. Earlier this month the judge approved the request.

Stephen Hill, a former antitrust partner who has been working on the case since 2002, told our sister publication Am Law Daily that he plans to stick with the case. Read up on all the latest happenings here.

The National Park Service alerted Occupy D.C. demonstrators today of its intent to begin enforcing a no-camping rule starting on Monday, and also filed
notice (PDF) with the federal judge overseeing the protesters' case against the agency about the warning this afternoon.

Attorneys for the Occupy D.C. demonstrators and the U.S. Department of the Interior are due in court Jan. 31 to argue over a preliminary injunction motion. The demonstrators have sued to keep the park service from removing any tents or property from McPherson Square, which they claim would be a violation of their constitutional rights since the items are part of their protest.

U.S. District Judges James Boasberg issued a minute order in December requiring the agency to give the court a 24-hour notice before attempting to enforce the no-sleeping rule. In the absence of such notice, the agency has been barred from interfering with the site, except in case of an emergency.

Several hours after the government notified the court of its warning, Boasberg issued a new minute order finding that the park service had complied with the previous order and that Park Police could “begin enforcing the Park Service's anti-camping regulations, including arresting those persons in McPherson Square who are in violation of those regulations and seizing for temporary impoundment their tents and other possessions.”

The Jan. 31 hearing will address the question of whether Park Police can destroy or remove tents that belong to people who are complying with the no-camping rule, Boasberg wrote.

Earlier this week, the House Oversight and Government Reform Committee called National Park Service Director Jonathan Jarvis to testify about the agency’s handling of the protest. Committee Chairman Rep. Darrell Issa (R-Calif.) and other committee members had pressed Jarvis to explain why U.S. Park Police had yet to enforce the no-camping rule when they were aware that demonstrators were sleeping on the site.

Jarvis responded that the agency had discretion in deciding how to enforce the no-camping rule, and that police had been trying to work with the protesters to get compliance while also upholding their First Amendment rights.

Washington solo practitioner Jeffrey Light, who is representing the protesters, said in a phone interview this afternoon that he wasn’t surprised by the notice issued by the park service today. “If somebody is violating the law, that’s not what the lawsuit is about,” Light said. At issue in the lawsuit, he said, is “what about people who aren’t doing something illegal.”

The protesters, in their court briefs, have not contested the legality of the no-camping rule.

A park service spokesman could not immediately be reached for comment this afternoon.

Lawyers with Covington & Burling in Washington helped to secure asylum for a Sudanese Episcopalian Bishop after he became a target for his support of South Sudan, the firm said Friday.

Bishop Andudu Adam Elnail is a native of the Sudanese province of South Kordofan, which borders South Sudan to the north.

Elnail came to the U.S. seeking medical treatment in May 2011. In June 2011, a conflict broke out between the Army of Sudan and the Sudan People’s Liberation Army/Movement in South Kordofan. About the same time, Covington began representing Elnail’s quest for asylum pro bono. Associate Arjun Singh Sethi was the lead attorney representing Elnail, supported by partner Gerald Masoudi.

“It was an extremely urgent situation and within the span of a few days, his home was destroyed and looted, his office was destroyed and looted and his church was destroyed and looted,” Sethi said. “We also had evidence that the Sudanese government had a list of individuals who were targeted for execution.”

Sethi argued that if Elnail returned to his home, he would be persecuted for his political beliefs in support of South Sudanese independence. Covington prepared Elnail’s asylum application, his personal affidavit and an expert affidavit. Now that his asylum has been granted, Elnail, living in Denver, is trying to bring his family to the U.S. as derivative asylees.

“Asylum is the way for me to advocate for the people of South Kordofan,” Elnail said in a written statement. “I can do more for my people here than if I was in Sudan.”

Sethi said that many asylum seekers face the harsh reality that they may never again step foot in their homeland.

“As much as he is a wonderful advocate here, there is a part of him which is in Sudan,” Sethi said, referring to Elnail. “That is where he was born and that is where his heart remains.”